Opinion
No. 9305912.
Decided August 19, 1993.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Ken Lusnia, Assistant Prosecuting Attorney, for the state.
Sam Amata, David King and Alice Lissauer, Cuyahoga County Assistant Public Defenders, for D.R.
This matter came on for consideration upon the motions of D.R., the child herein, to exclude the news media and the general public from all hearings in the case and to change venue, the motions in opposition to the child's motion to exclude the news media and the general public filed by the Plain Dealer Publishing Company and Gillett Communications of Ohio, Inc., and the motion in opposition to change of venue filed by the Cuyahoga County Prosecutor's Office.
Letters also were received by this court on behalf of WKYC-TV 3 objecting to any closure of the hearings.
I FACTS
D.R., a child age seventeen at the time of the alleged act giving rise to the delinquency complaint, was charged as a delinquent for the offenses of murder (R.C. 2903.02[A]) and felonious assault (R.C. 2903.11[A][2]) as the result of the shooting death of a six-year-old child and the wounding of an adult. Subsequent to the filing of the complaint, the Cuyahoga County Prosecutor's Office filed a motion to transfer the child for prosecution as an adult pursuant to Juv.R. 30.
II LAW
In determining whether to grant the motion to transfer, this court is required by statute (R.C. 2151.26) and rule (Juv.R. 30) to conduct a two-part hearing. Initially, the court must hold a preliminary hearing to determine if there is probable cause to believe that the child committed the act alleged and that the act would be a felony if committed by an adult. If probable cause is found, the court must continue the proceedings for full investigation, culminating in an amenability hearing at which the court determines whether to transfer the child for adult prosecution.
The United States Supreme Court has consistently recognized the right of the public and media to attend adult criminal trials, but has not squarely addressed the issue of public access to juvenile proceedings. Kurtz Giannelli, Ohio Juvenile Law (2d Ed. 1989), T11.08. However, this issue has been addressed in Ohio through statute and rule, as well as two decisions of the Ohio Supreme Court.
R.C. 2151.35(A) provides that "[i]n the hearing of any case, the general public may be excluded and only those persons admitted who have a direct interest in the case." Juv.R. 27 contains almost identical language. The meaning of this provision was first considered by the Supreme Court in State ex rel. Fyffe v. Pierce (1988), 40 Ohio St.3d 8, 531 N.E.2d 673, a case in which the court was asked to rule on the validity of a juvenile court order denying a motion to exclude the news media and general public from an amenability hearing. An action seeking a writ of prohibition to prevent media and public access was filed by the relators, the alleged delinquents, in the Supreme Court. The court denied the issuance of the writ because the relators nowhere alleged that they lacked an adequate remedy at law. However, in apparent dicta, the court interpreted the word "may" as used in R.C. 2151.35 and Juv.R. 27 as not mandatory, thus permitting the juvenile court to exercise its discretion in determining whether to close the amenability hearing. Absent from the court's decision were any criteria to guide the juvenile courts in making this decision.
Because the writ was denied for failure to state a claim in prohibition, it appears that the court's discussion of the merits of the motion to exclude the media and public was dicta. However, in its subsequent decision in In re T.R. (1990), 52 Ohio St.3d 6, 17, 556 N.E.2d 439, 450, the court stated, "In State, ex rel. Fyffe v. Pierce, supra, we held that these provisions authorized, but do not require, closure of the hearing." (Emphasis added.)
The Ohio Supreme Court again addressed this issue in In re T.R., (1990), 52 Ohio St.3d 6, 556 N.E.2d 439, a consolidated dependency and custody action. The court held that the open courts provision of the Ohio Constitution did not apply. It also held that there is no qualified right of, or presumption for or against, public access to juvenile court proceedings to determine if a child is abused, neglected or dependent, or to determine custody of a minor child. The court established criteria for determining public access in such proceedings by developing a balancing test in which the competing interests for and against public access would be weighed on a case-by-case basis. Under this test, the juvenile court should hear evidence and argument, and then may close the proceedings if "it finds that (1) there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the proceedings, and (2) the potential for harm outweighs the benefits of public access." T.R., supra, at 18-19, 556 N.E.2d at 451-452.
Although the open courts provision of the Ohio Constitution (Section 16, Article I) specifically states that all courts shall be open, this provision was enacted in 1802, a full one hundred years before the first juvenile court was created in Ohio.
Because Fyffe contained no criteria for determining whether to permit public access in Juv.R. 30 proceedings, and T.R. was specifically limited to abuse, neglect, dependency and custody proceedings, there remains a question as to what standard to apply in determining the right of access to a preliminary hearing and amenability hearing in Juv.R. 30 proceedings. For the reasons that follow, it is the belief of this court that the preliminary hearing should be presumptively open to the media and public, while the amenability hearing should be presumptively closed. However, given the Supreme Court's analysis in T.R., this court is forced to conclude that the Supreme Court would apply the T.R. test to Juv.R. 30 proceedings. The discussion which follows explains both this court's preferred analysis and its conclusion based upon T.R.
III DISCUSSION
All children's cases in juvenile court, whether focusing on the child as the accused (as in delinquency cases) or the victim (as in abuse, neglect or dependency cases), are governed by the same statute (R.C. 2151.35[A]) and rule (Juv.R. 27) with respect to the issue of public access. However, because there are major distinctions between the conduct of a Juv.R. 30 preliminary hearing and amenability hearing in a delinquency case and the conduct of an abuse, neglect or dependency case, the presumptions should be different.
A Preliminary Hearing
An alleged delinquent subject to a Juv.R. 30 preliminary hearing is more akin to an adult criminal defendant than to an alleged abused, neglected or dependent child. The Juv.R. 30 preliminary hearing focuses on the alleged involvement of the child in the felony offense specified in the complaint, and is essentially the same as the adult court preliminary hearing held pursuant to Crim.R. 5. Courts have long recognized the overriding benefits of public access to adult criminal proceedings. "The underlying premise of a public trial is that the public is a party to all criminal proceedings. Criminal cases are prosecuted in the name of the people because crimes are public wrongs affecting all members of society." State ex rel. The Repository v. Unger (1986), 28 Ohio St.3d 418, 420, 28 OBR 472, 474, 504 N.E.2d 37, 39. As the United States Supreme Court has expressed, "without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and `of the press could be eviscerated.' Branzburg [ v. Hayes (1972)], 408 U.S. [665], at 681 [ 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626, 639]." Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 580, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973, 992. In accordance with these principles, the United States Supreme Court has held that adult court preliminary hearings are to be conducted in open court. Press Enterprise Co. v. Superior Court (1986), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1.
Information which is normally considered confidential in juvenile court proceedings — such as a social history or mental examination — is not relevant to the Juv.R. 30 probable cause determination. On the other hand, abuse, neglect, dependency and custody cases, which often depend on confidential records of the juvenile court and children services agencies, generally require the courts to delve into the private relations of parents and children. T.R., supra, 52 Ohio St.3d at 16, 556 N.E.2d at 449-450. In considering this distinction between delinquency cases and abuse, neglect, and dependency cases, the Supreme Court has stated:
"The need for confidentiality is even more compelling in the case of a child who is abused, neglected, or dependent. The delinquent child is at least partially responsible for the case being in court; an abused, neglected, or dependent child is wholly innocent of wrongdoing. While the public arguably has an interest in delinquency proceedings which is analogous to its interest in criminal proceedings * * *, this interest is not present in abuse, neglect, and dependency proceedings." (Emphasis added.) Id. at 16, 556 N.E.2d at 449.
Moreover, during the past twenty-five years, the procedures utilized in the adjudicatory, dispositional and postdispositional stages of juvenile delinquency proceedings have become ever more analogous to those of the adult criminal system. If juveniles are to be afforded the same level of procedural due process protection as adults, then their judicial system should be subject to the same degree of scrutiny. In light of the above, it is the opinion of this court that, in determining public access, there should be a qualified right of public access to a Juv.R. 30 preliminary hearing, and that such a hearing should therefore be considered presumptively open.
See, for example, In re Gault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, holding that alleged delinquents have the right to notice, the right to counsel, the right to remain silent and the right to confront and cross-examine the witnesses against them because "[n]either the Fourteenth Amendment nor the Bill of Rights is for adults alone"; In re Miller (1992), 82 Ohio App.3d 81, 611 N.E.2d 451, holding that the adult criminal case ( State v. Livingston [1976], 53 Ohio App.2d 195, 7 O.O.3d 258, 372 N.E.2d 1335) which sets forth the three-part test to determine whether a condition of probation is invalid applies to juvenile proceedings and prohibits juvenile courts from unduly infringing a child's constitutional rights when setting provisions of probation; John L. v. Adams (C.A.6, 1992), 969 F.2d 228, holding that incarcerated juveniles, like incarcerated adults, have a constitutional right of access to the courts, and that in order to make this right meaningful the state must provide the juveniles with access to an attorney.
B Amenability Hearing
The scope and purpose of a Juv.R. 30 amenability hearing are entirely different from that of a Juv.R. 30 preliminary hearing. Whereas the preliminary hearing focuses on the facts surrounding the alleged delinquent act, the amenability hearing focuses almost entirely on the child's potential for rehabilitation. In making a decision regarding the child's amenability to rehabilitation, the court is required to consider extensive social history information, including (1) the child's age and his mental and physical health; (2) the child's prior juvenile record; (3) efforts previously made to treat or rehabilitate the child; (4) the child's family environment; and (5) the child's school record. Juv.R. 30(E). These types of information have traditionally been considered confidential by both statute (R.C. 2151.14, 2151.18, 2151.358) and rule (Juv.R. 32[B], 37[B]). Because of the primary and extensive reliance on confidential reports in determining amenability, the need for closure is arguably greater in Juv.R. 30 amenability hearings than in abuse, neglect or dependency adjudicatory hearings. As the Supreme Court has stated, "the effectiveness of the statutes and rules mandating confidentiality of the records of juvenile courts * * * would be destroyed if the public were allowed access to the proceedings in which the confidential records are generated." T.R., supra, 52 Ohio St.3d at 16, 556 N.E.2d at 449.
It is, therefore, the opinion of this court that, in determining public access, a Juv.R. 30 amenability hearing should be presumptively closed.
IV CONCLUSION
In light of the above analysis, this court believes that Juv.R. 30 preliminary hearings should be presumptively open, and Juv.R. 30 amenability hearings should be presumptively closed. However, while there are significant differences between the specific types of hearings considered in T.R. and those presently under consideration, it is apparent, based on the rationale in T.R., that the Supreme Court likely would extend the T.R. test to the hearings at hand. As far as any presumption of openness is concerned, the court in T.R. broadly stated "that a juvenile court * * * is not presumptively open." In re T.R., supra, 52 Ohio St.3d at 21, 556 N.E.2d at 454. Regarding any presumption of closure, it must be noted that, while there are differences between the specific types of hearings considered in T.R. and an amenability hearing, nonetheless, private, confidential social records are used in all such proceedings. See Juv.R. 30(E), 32(A) and 34(B). If the Supreme Court in T.R. found no presumption of closure there, the ineluctable conclusion is that it would find similarly regarding amenability hearings. Accordingly, it is appropriate to conclude that the holding in T.R., which provides that certain juvenile court hearings are neither presumptively open nor presumptively closed, should be applied to both the preliminary and amenability hearings in Juv.R. 30 proceedings. See, also, State ex rel. Fyffe v. Pierce (1988), 40 Ohio St.3d 8, 531 N.E.2d 673.
V HOLDING
In this case, the evidence adduced at the hearing does not demonstrate that there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the adjudication, or that the potential for harm outweighs the benefits of public access. It is therefore ordered that the preliminary hearing in this matter shall be open to the media and the public. It is further ordered that if probable cause is found at the preliminary hearing, the subsequent amenability hearing shall also be open to the media and the public.
It is further ordered that the motion for change of venue is overruled. Pursuant to R.C. 2151.35(A) and Juv.R. 27 all proceedings in this matter conducted in this court shall be heard and determined without a jury, and the movant has failed to establish by sufficient evidence that a fair and impartial hearing cannot be held in this court.
Judgment accordingly.